The Logic of Scarcity: Idle Spectrum As a First Amendment Violation

BENJAMIN 10/28/02 2:07 PM Duke Law Journal VOLUME 52 OCTOBER 2002 NUMBER 1 THE LOGIC OF SCARCITY: IDLE SPECTRUM AS A FIRST AMENDMENT VIOLATION STUART MINOR BENJAMIN† ABSTRACT The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government- created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale—or any other reasoning— supports distinguishing spectrum from print such that government actions constricting the supply of spectrum would pass muster. I argue that the scarcity rationale does not support, and instead undercuts, government actions that limit the use of the spectrum. Government decisions that exacerbate the problems that gave rise to government regulation in the first place subvert the entire justification Copyright © 2002 by Stuart Minor Benjamin. † Rex G. & Edna Baker Professor in Constitutional Law, University of Texas School of Law. B.A., Yale University, 1987; J.D., Yale Law School, 1991. I would like to thank Akhil Amar, David Anderson, Tom Bell, Mitch Berman, James Boyle, Stuart Buck, Douglas Galbi, Nicole Garnett, Dale Hatfield, Thomas Hazlett, Ken Katkin, Doug Laycock, Doug Lichtman, Mike Marcus, Neil Netanel, Arti Rai, Kathleen Sullivan, Eugene Volokh, Douglas Webbink, and Phil Weiser for helpful comments, and Jessica Mederson for research assistance. BENJAMIN 10/28/02 2:07 PM 2 DUKE LAW JOURNAL [Vol. 52:1 for lenient review. And no other rationale would distinguish spectrum from print in a way that would support government constraints on the former but not the latter. Commentators have not attended to this question of the constitutional status of idle spectrum, perhaps assuming that NBC v. United States and Red Lion Broadcasting Co. v. FCC effectively held that all regulation of spectrum is subject to lenient scrutiny. But the cases did not purport to extend so broadly, and there is good reason to conclude that their lenient review would not apply to government actions reducing the availability of spectrum. The appropriate review, I contend, is the intermediate scrutiny ordi- narily applied to content-neutral speech regulation. In order to satisfy such scrutiny, the government must put forward an important or sub- stantial government interest. I suggest that in most cases the only interest that would justify a refusal to allocate spectrum is nontrivial interference. I thus conclude that, even if one accepts the current state of the doctrine, the government cannot exclude noninterfering uses from the spectrum. TABLE OF CONTENTS Introduction................................................................................................. 3 I. When Might Government Actions Create Unused or Underused Spectrum?..................................................................... 8 A. The Government’s Licensing Regime.................................... 8 B. Unused and Underused Spectrum........................................ 11 II. Direct Government Control of a Means of Communication.............................................................................. 26 A. A Hypothetical: The Government Licenses All Printing Presses in a Content-Neutral Manner ................... 26 B. Another Hypothetical: The Government not only Licenses Printing Presses, but also Keeps Some Presses Idle by Refusing To License Them......................... 32 III. Rationales for Lenient Review .................................................... 38 A. The Implications of Scarcity.................................................. 38 B. Other Rationales .................................................................... 45 IV. Determining the Level of Scrutiny .............................................. 54 A. The Inapplicability of NBC and Red Lion to Cases Alleging Government Wasting of the Spectrum................. 54 B. The Applicability of Heightened Scrutiny........................... 60 V. Applying Intermediate Scrutiny to the Wasting of Spectrum ......................................................................................... 64 A. The Absence of Sufficient Government Interests BENJAMIN 10/28/02 2:07 PM 2002] THE LOGIC OF SCARCITY 3 Beyond Interference .............................................................. 65 B. Determining Whether a Given Level of Interference Satisfies Intermediate Scrutiny ............................................. 77 VI. The Breadth of the Principle of Avoiding Waste....................... 82 A. Spectrum or Broadcasting? ................................................... 82 B. Beyond Refusals To Allocate Unused Spectrum ............... 84 1. Underutilization and Spectrum Management ............... 85 2. Giving More Than Enough Spectrum to Private Licensees............................................................................ 96 3. Adding Voices Versus Displacing Them ..................... 100 VII. Allocation of Unused or Underutilized Spectrum as an Alternative to Regulation........................................................... 104 Conclusion ............................................................................................... 110 INTRODUCTION In 1927, Congress claimed control of the radio spectrum.1 In 1967, the Federal Communications Commission (FCC or the Com- mission) promulgated regulations requiring that stations airing personal attacks or political editorials give assailed parties airtime for a response.2 And in 2000, Congress gutted a plan that would have al- lowed low power radio broadcasters to utilize currently unused fre- 1. Radio Act of 1927, ch. 169, 44 Stat. 1162, 1162. The government did not claim ownership of the spectrum, but it both explicitly precluded private ownership and arrogated unto itself broad authority to control the spectrum. See 47 U.S.C. § 301 (1994): It is the purpose of this Act, among other things, to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be con- strued to create any right, beyond the terms, conditions, and periods of the license. See also infra note 223; In re NextWave Personal Communications, Inc., 200 F.3d 43, 50 (2d Cir. 1999) (“Although not owned by the federal government, the radio spectrum is subject to strict governmental regulation.”). The radio spectrum is the range of frequencies suitable for the propagation of radio waves. See HARRY NEWTON, NEWTON’S TELECOM DICTIONARY 362, 697–98 (16th ed. 2000) (defining terms relevant to the discussion of radio frequencies and spectrum). It would be a bit ungainly to refer constantly to “the range of frequencies suitable for radio waves” or “the available range of radio frequencies,” so in most places I simply refer to “the spectrum.” This short- hand should not obscure the fact, however, that spectrum has no independent existence, but instead is just the available range of frequencies. See infra notes 104–06 and accompanying text. 2. Amendment of Part 73 of the Rules to Provide Procedures In the Event of a Personal Attack or Where a Station Editorializes as to Political Candidates, 8 F.C.C.2d 721, ¶ 7 (1967). BENJAMIN 10/28/02 2:07 PM 4 DUKE LAW JOURNAL [Vol. 52:1 quencies.3 The Supreme Court applied fairly deferential review in explicitly upholding the personal attack and political editorial rules in Red Lion Broadcasting Co. v. FCC4 and implicitly upholding the government’s control of the spectrum in NBC v. United States,5 based on the same rationale: the spectrum was scarce and was subject to interference, so the regulation at issue was permissible.6 One might assume that this justification for lenient review would apply to the 2000 decision on low power radio as well. But the 2000 decision is different, because scarcity does not justify keeping users off the airwaves. In- deed, the addition of new users to the spectrum would tend to miti- gate the scarcity problem. The justifications for lenient review of government action thus do not apply to this decision. Accordingly, assuming the validity of Red Lion, NBC, and the scarcity rationale, government decisions that limit the availability of spectrum are subject to more rigorous review than was applied in those cases—and that review will often prove fatal. Commentators have not addressed this point, because most have argued for a reconceptualization of spectrum regulation and the scarcity justification on which it has been based. Some argue that neither spectrum scarcity nor any other rationale can justify government control over spectrum, and thus push for private ownership of the spectrum.7 Others agree that the spectrum is not scarce in ways that distinguish it from newspapers but put forward other justifications for regulation of spectrum—ones that often support regulation of news- 3. In January 2000, the FCC promulgated a rulemaking establishing a low power radio service. Creation of Low Power Radio Service, 15 F.C.C.R. 2205 (2000).

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